Outside editorial: End 'don't ask' before courts make the change

Posted: Friday, December 17, 2010

The following editorial first appeared in the Chicago Tribune:

If members of the U.S. Senate don't act soon to end the military's discriminatory "don't ask, don't tell" policy, then the courts almost certainly will do it for them, and that has top Pentagon brass worried.

Secretary of Defense Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, both want to repeal the policy, which prohibits gays from serving openly in the armed forces. But they also want an orderly transition. And they won't get one if the courts take over.

"Those that choose not to act legislatively are rolling the dice this will not be abruptly overturned by the courts," Gates told the Senate Armed Services Committee last week.

The House had already voted to end "don't ask," contingent on a finding by top military advisers doing so wouldn't compromise troop readiness. But the Senate came up three votes short. There's still a chance to lift the ban by year's end, now the repeal measure has been divorced from the defense spending bill. The House would have to vote again, followed by the Senate. But if that doesn't happen, watch out.

On Monday, three service members who were discharged under "don't ask, don't tell" filed a suit seeking reinstatement, a move meant to put more pressure on Congress to end the ban.

A federal judge ruled in October the 17-year-old ban violates gay service members' constitutional rights to free speech and equal protection under the law. She ordered the military to stop enforcing it, but an appeals court suspended the order after the Justice Department said an abrupt change would be "enormously disruptive." The idea was to buy time for the Senate to pass the bill so the military could end the ban on its own timetable.

"Don't ask, don't tell" isn't fair. It also isn't necessary. Three out of four Americans favor lifting the ban, according to an ABC/Washington Post survey; that's up from 44 percent when it was enacted in 1993.

The fear at the time was allowing gays to serve openly would hurt unit cohesiveness, but that, too, has faded. The ban was suspended during the 1991 Persian Gulf War and almost nobody noticed. The Defense Department's own survey found 69 percent of military personnel believe they've already served alongside homosexuals. Less than 30 percent felt lifting the ban would have a negative effect.

That figure rose to 40 percent among combat troops, boosting the argument that "don't ask, don't tell" shouldn't be repealed while the nation is at war. But the choice isn't whether the ban will be lifted during war or peace; it's whether it will be lifted by Congress or the courts.

Military leaders are asking for the flexibility to do this right. That will be next to impossible if the courts order them to do it now.